Requirements

Question 1

what is a Will?

Answer 1

a declaration in accordance with statutory requirements of T’s intention regarding matters they wish to take effect on/after their death

Question 2

what is required for a valid Will / codicil?

Answer 2

All valid wills require:
o Capacity
o Intention
o Compliance with s9 formalities

otherwise the Will is invalid

Question 3

what is a codicil? What can it be used for?

Answer 3

a document to add/vary/revoke provisions of a Will

it can also be used to revive a revoked Will

Question 4

what effect does a codicil have?

Answer 4

a codicil republishes the existing Will i.e. the Will takes effect from the date of execution of the codicil

Question 5

when will T have testamentary capacity?

Answer 5

T must be over 18 and of sound disposing mind, memory and understanding when giving instructions and executing the will

Question 6

what is the test for testamentary capacity? Give the case name and explain each element.

Answer 6

Banks v Goodfellow:

To have testamentary capacity, T must understand:

The nature and effect of their acts, i.e.:
 That the will could be revoked
 It only operates on death
 Rationale behind the appointment of executors
 Effect on Bs

The extent of the property being disposed of; and
 i.e. property in joint names or trust that wouldn’t be affected by the will

The nature of the claims on him
 i.e. leaving nothing to family does not mean T didn’t have capacity, so long as they could appreciate the effect of this.

Not be suffering from insane delusion that affects their disposing of property
 There must be a causal link between the delusion + will dispositions i.e. fear of evil spirits did not affect T’s Will dispositions

Question 7

what is the Parker and Felgate rule?

Answer 7

If T had capacity when they gave the instructions but lacks capacity at execution, they can still make a valid will if:
o T had capacity when they gave the instructions;
o They remember giving their earlier instructions;
o They understand that the will they are about to sign has been prepared following those instructions

Question 8

what should a solicitor do if they have doubts as to T’s capacity?

Answer 8

Keep a full note of their impressions of T and their state of mind

exercise the golden rule = arrange for medical practitioner to witness execution and approve T has capacity

Doesn’t guarantee validity but it is good evidence

Question 9

can a Will be made if T lacks capacity?

Answer 9

a statutory will can be authorised by the COP under MCA

Question 10

explain T’s intention

Answer 10

T must have knowledge and approval of the Will

in other words, T must have intended to make a will (i.e. understands the effect of making a will) and know and approve of its contents (i.e. the dispositions being made)

Question 11

what are the s9 Wills Act requirements? explain each part.

Answer 11

It is in writing
 Interpreted liberally (i.e. on egg shell ✔️), but only an e-copy available ❌

It is signed by T (or another in T’s presence under T’s direction)
 Anything to identify T i.e. ‘your loving mother’, thumbprint

T intended to for their signature to give effect to the will
 i.e. writing on envelope + not will = insufficient

T’s signature is made or acknowledged in the presence of 2 or more Ws present at the same time
 W’s must be aware T is signing/ack. a document (need not know it is a will)

Each W attests and signs or acknowledges their signature in the presence of T
 (not necessarily each other)